Thursday, July 24, 2008

Student essay--role of citations in legal writing

“I don't even know where my Bluebook is,” the young associate told me as she looked over the sea of red ink on the motion she had asked me to “proofread.” “Really?” I asked, quite perplexed as I tried to cover up my carefully tabbed and slightly tattered Bluebook. I thought legal writing was all about the citations.

I had always considered myself a good writer, even a great writer at times. So when it came to legal writing, I focused almost completely on having correct citations after each and every sentence. I was already a good writer--all I needed to make it good legal writing was citations, right? Apparently I was wrong.

The next day the young associate called me into her office to go over a memo I had drafted a few days earlier (before I realized she didn't care about citations). When we sat down to discuss it, she actually had concerns about my legal analysis. This had never happened to me before--not in my legal-research-and-writing class, not in my brief-writing class, not when I was working on my student note. My analysis was always sufficient--it was those pesky citations (or lack thereof) that got all of the comments. Evidently “sufficient” analysis was not good enough anymore. The young associate was able to look past the citation game I had been playing and actually read the words I put down on the paper.

This realization lifted quite a burden, permitting me to focus on analysis and clear writing rather than on the tedious work of citation checking. The results were amazing! The next memo I turned in to the young associate had flawless legal analysis. It had citations where necessary for my analysis, but I didn't waste time checking every abbreviation or en-dash. She was impressed, quickly passing on the results of my research to a partner working on the same issue. Forgetting citation form was the best thing that had ever happened to my legal writing.

About a week later, I turned in a short memo to another associate. This time, I did not waste any time checking my citations. When I went to the associate's office to go over his comments, I was surprised to see a sea of red on my memo. It was clear that he was not impressed with my new and improved focus on legal analysis or my careful synthesis of the relevant case law. He did not have any substantive changes or comments about my analysis or legal conclusion. However, he had gone through, Bluebook close at hand, and checked every single citation in the entire memo, carefully marking it up as if he were a law review editor. After going through and explaining every single place where I had failed to use small caps or had an incorrect abbreviation, he gave me an “important” piece of advice. “Legal writing is all about citations.”

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[Plain language] has a bad name among some lawyers. This is usually because they don't understand enough about it to judge it properly. --Michele M. Asprey, Plain Language for Lawyers 11 (2d ed., Federation Press 1996).

A related bonus of a plain language style is the potential for reducing mistakes. Traditional legal language tends to hide inconsistencies and ambiguities. Errors are harder to find in dense and convoluted prose. Removing legalese helps lay bare any oversights in the original. --Peter Butt & Richard Castle, Modern Legal Drafting: A Guide to Using Clearer Language 89 (Cambridge U. Press 2001).